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Journal of Employment Relations
Volume 41 Number 3
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In the latest New
Journal of Employment Relations the following topics are covered. If
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Anderson*, Guest Editor
The third biennial conference of the New Zealand Labour Laws
Association was hosted by the Faculty of Law at the Victoria University
of Wellington on 27 November 2015. In Issue 41(2), the Journal
published six papers from the conference. A further seven papers are
of Law, Victoria University of Wellington
Creating an Elegant Solution
This opinion piece by Auckland barrister, Helen White, muses on the
reasons why some labour reforms become an enduring and entrenched
feature of labour law and others fail to do so. She suggests that
reforms are likely to be enduring when they resonate strongly with the
public, reflect international thinking and are accepted by the courts
and legal profession.
*Specialist employment barrister, Auckland.
Protections, Loopholes and the Employment Court
Analysis of the
Employment Court’s recent approaches to statutory workplace
protections in the Equal Pay Act 1972, the Minimum Wage Act 1983, the
Wages Protection Act 1983 and Part 6A, Employment Relations Act 2000
suggests that it currently lacks a consistent approach to the issue of
protection. The Court appears to be overly vulnerable to the way
that proceedings are presented and argued, and it fails to consistently
privilege purposive over other approaches to the interpretation of
*PhD candidate, Faculty of Law, University of Otago.
The Right to Reasonably Limited Working Hours in the Smartphone Era
Under the International
Covenant on Economic, Social and Cultural Rights, everyone in New
Zealand has the right to reasonably limited working hours. However, New
Zealand law does not expressly recognise this right or generally limit
the number of hours a person may work. Also, according to figures from
the 2013 Census, just over 215,000 people work between 50–59
hours per week, and some 160,000 people work 60 hours or more per week.
These figures indicate that many people in New Zealand do not enjoy the
right to reasonably limited working hours. This article argues that New
Zealand is not complying with its obligations under the Covenant in
respect of working hours, or with related obligations concerning the
family and health. It also proposes ways in which New Zealand could
better comply with these obligations. In this context, the article
considers the impact smartphones have on work, and the challenges they
create in placing limits on work.
specialising in employment law and member of the New Zealand Law
Society’s Human Rights and Privacy Committee.
What are business internships, and do they offer opportunities for a symbiotic relationship?
Leigh Thomson and Josephine Bourke*
What is a business
internship in the 21st century? The common understanding indicates that
it is a way for people to gain experience within an industry. However,
the range of opportunities available creates difficulty in defining
internships, particularly as available places are marketed variously
for course credit, overseas experience, general industry experience and
In the current business
environment, there is room for relationships within internships to
include similarities to those involved in modern apprenticeships.
However, any comparisons with the reciprocal association involved in
apprenticeships may ignore emerging difficulties. Many available
internships are unpaid, and while they still offer opportunities to
gain industry experience, such experiences are subject to economic and
This paper considers the
New Zealand context, poses questions around the symbiotic and
exploitative aspects of the relationship, and includes the influence of
New Zealand labour law. Finally, it proposes possible options to assist
interns and employers to develop an appropriate, symbiotic relationship
that includes reciprocal benefits.
*Lecturers, Open Polytechnic of New Zealand.
Why New Zealand Should Introduce Paid “Dad and Partner Leave”
Amanda Reilly* and Suzy Morrissey**
Paid parental leave was introduced in New Zealand as a 12-week period
in 2002, expanded over a number of years to 16 weeks and, from 1 April
2016, became available for 18 weeks. Debate in New Zealand has focussed
on the desirability of further extending the period of leave available
and on widening eligibility. This paper, however, makes the case that
the introduction of an independent entitlement to a separate period of
paid parental leave for fathers/partners should be a priority. It
argues that such a measure would further equality between men and women
and would bring New Zealand law into line with corresponding policies
in other developed economies and with International Labour Organization
(ILO) recommendations. This paper also considers the question of the
design of such an entitlement. It concludes that partner leave should
be well paid, ring fenced for ‘dads and partners’ (as the
equivalent Australian provision is), and at least two weeks long. The
options that it could potentially be funded by employers rather than
the state, and could be made compulsory, are also discussed.
* Amanda Reilly, Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington
** Suzy Morrissey, PhD student, School of Accounting and Commercial Law, Victoria University of Wellington.
Employment Relationship Problem Resolution: A gap between objectives and implementation
Gaye Greenwood* and Erling Rasmussen**
This paper identifies a disjuncture between the policy objectives of
the Employment Relations Act 2000 (ERA) and the Employment Relations
Problem Resolution system. One objective of the ERA was the early
resolution of employment relationship problems close to the workplace.
The framing of workplace conflict as Employment Relationship Problems
(ERP) heralded a paradigm shift from adversarial escalation of disputes
to collaborative problem solving by early negotiation and mediation.
Our research suggests that in practice there is a propensity to bypass
the intentions of the ERA by confidential settlement negotiation or
escalation to a personal grievance; thus, the aim of strengthening
employment relationships through processes of early, low-cost, fast and
fair conflict resolution by state sponsored institutions appears yet to
be fully realised in the education sector.
Our research of ERP in the New Zealand education sector indicates the
shortfall in meeting the original intentions of the ERA is related to
three factors: 1) the complexity of contemporary employment
relationships in education; 2) the state provision of processes for
early resolution does not include conflict in complex stakeholder
relationships; 3) a culture of complaint has a negative impact on trust
in school employment relationships. Given that background, this paper
sets the scene for the forthcoming publication of a model for
collaborative conflict management that provides process guidelines for
organisations under the current legislative framework.
*Gaye Greenwood is a Mediator and Senior Lecturer in the Management
Department in the Faculty of Business Economics and Law at Auckland
University of Technology.
** Erling Rasmussen, Professor of Work and Employment at Auckland University of Technology
Meaning of “Social Origin” in International Human Rights
Treaties: A Critique of the CESCR’s Approach to “Social
Origin” Discrimination in the ICESCR and its (Ir)relevance to
National Contexts such as Australia
A number of international human rights treaties prohibit discrimination
on the basis of “social origin”. This paper discusses the
meaning of the term “social origin” in international human
rights treaties. It articulates what meaning United Nations (UN) treaty
bodies attribute to the term “social origin”, and the
concept of “social origin” discrimination, in the
international human rights treaty each body monitors. This paper finds
that the Committee on Economic, Social and Cultural Rights (CESCR),
which monitors the implementation of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), is the only UN treaty
body which provides a clear and detailed interpretation of the term
“social origin” in an international human rights treaty
(the ICESCR). It argues that the meaning which the CESCR attributes to
the term “social origin” in the ICESCR may have some value
to understanding what the term might mean in Australian legislation
which prohibits discrimination based on “social origin”.
This paper finds that, according to the CESCR, “social
origin” in the ICESCR refers to “inherited social
status”. This paper critiques the CESCR’s approach to
“social origin” and “inherited social status”.
It argues that the CESCR’s approach to “social
origin” requires development if it is to have relevance and its
intended effect (prohibiting discrimination on the basis of
“inherited social status”) in national contexts such as
Australia. This paper thus proposes a view of discrimination based on
“inherited social status” (and therefore “social
origin”) that has relevance and application in settings such as
* BCL (Oxford), GDLP (ANU), LLB (Vic) (Hons); PhD Candidate, Monash University.
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